UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4722
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVONE A. JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:06-cr-00120-RAJ)
Submitted: March 31, 2008 Decided: April 10, 2008
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brett D. Lucas, GABRIEL & ASSOCIATES, P.C., Virginia Beach,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Robert J. Krask, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javone A. Johnson was convicted in a bench trial for bank
fraud, 18 U.S.C. § 1344 (2000) (two counts), use of false social
security number, 42 U.S.C. § 408(a)(7)(B) (2000) (five counts), and
aggravated identity theft, 18 U.S.C. § 1028A(a)(1) (2000). He was
sentenced to fifty-nine months of imprisonment. On appeal, he
raises the following claims: (1) the district court erred in
denying his motion for new counsel and a continuance; (2) he was
convicted on multiplicitous counts; (3) insufficient evidence
supports his convictions for use of false social security number;
(4) the district court abused its discretion in admitting certain
hearsay evidence at trial and sentencing; and (5) the district
court erred in imposing a two-level enhancement to his sentence for
obstruction of justice. Finding no reversible error, we affirm.
Johnson first argues on appeal that the trial court
abused its discretion in denying his motion to substitute current
counsel and in refusing to continue the case. The Sixth Amendment
affords a criminal defendant the counsel of his choosing; however,
that right is not absolute. United States v. Mullen, 32 F.3d 891,
895 (4th Cir. 1994); Sampley v. Attorney Gen. of North Carolina,
786 F.2d 610, 613 (4th Cir. 1986). This court’s review is for an
abuse of discretion. United States v. Gallop, 838 F.2d 105, 108
(4th Cir. 1988). To determine whether the district court abused
its discretion in denying the defendant’s motion for a continuance
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so that he could substitute new counsel, this court considers: (1)
the timeliness of the motion; (2) the adequacy of the district
court’s inquiry into the defendant’s complaint about counsel; and
(3) whether the defendant and counsel have experienced a “total
lack of communication preventing an adequate defense.” Mullen, 32
F.3d at 895 (citing Gallop, 838 F.2d at 108). These factors must
be weighed against the court’s interest in the orderly
administration of justice. Mullen, 32 F.3d at 895. We find that,
based on the court’s thorough inquiry and due consideration of the
factors at the hearing, there was no abuse of discretion in the
denial of new counsel and a continuance.
Johnson next argues that certain convictions should be
dismissed on grounds of multiplicity. An indictment charging a
single offense in several counts is multiplicitous, subjecting a
defendant to a risk of multiple sentences for a single offense in
violation of the Double Jeopardy Clause. See United States v.
Goodine, 400 F.3d 202, 207 (4th Cir. 2005). However, it is well
established that a defendant may be convicted of two separate
offenses arising from a single act if each charge requires proof of
a fact not essential to the other. See Blockburger v. United
States, 284 U.S. 299 (1932). We find that the district court
appropriately conducted the Blockburger analysis and concluded that
this argument is without merit.
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Johnson also challenges the sufficiency of evidence
supporting his convictions for falsely representing his social
security number. A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a
conviction on grounds of insufficient evidence should be confined
to cases where the prosecution’s failure is clear.” United States
v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). A verdict must be
upheld on appeal if there is substantial evidence in the record to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial, this
court views the evidence in the light most favorable to the
Government, and inquires whether there is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to establish a defendant’s guilt beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We
find sufficient evidence in the record to support the challenged
convictions.
Johnson also asserts that the district court erred in
admitting certain hearsay evidence at trial and sentencing. The
district court has discretion generally to conduct a trial,
including the presentation of evidence, in whatever manner the
court deems appropriate, and the district court’s evidentiary
rulings are entitled to substantial deference and will not be
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reversed absent a clear abuse of discretion. See United States v.
Moore, 27 F.3d 969, 974 (4th Cir. 1994). We find no abuse of
discretion in the court’s challenged rulings.
Johnson’s last argument on appeal is that the district
court erred in imposing a two-level enhancement for obstruction of
justice. When reviewing the district court’s application of the
Sentencing Guidelines, this court reviews findings of fact for
clear error and questions of law de novo. United States v. Green,
436 F.3d 449, 456 (4th Cir.), cert. denied, 547 U.S. 1156 (2006).
Here, Johnson proffered altered documents in support of his
defense. We find no error in the court’s imposition of a two-level
enhancement for obstruction of justice. See U.S. Sentencing
Guidelines Manual § 3C1.1, comment. (n.4(c)) (2006) (listing as an
example the production of false, altered, or counterfeit documents
and records during an official investigation or judicial
proceeding).
Accordingly, we affirm Johnson’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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